Archive for category Legislation

Portability – A question of time

The first copyright proposal of the European Commission is a Regulation to enable temporary access to subscription services from your home country while travelling in Europe. This is the essence of the Portability Regulation.

The Commission decided against (or maybe just postponed) a full on attack on territorial licensing of audiovisual works and went for a very short but focussed 8 article text. The Commission sees a communication win with this one, and rightly so, the Regulation is a gift to consumers, essentially acting as a limitation to authors’ rights. They want to see this adopted quickly.

The Dutch Presidency is happy to oblige and is racing through the text pushing it up to top political level (COREPER) already, leaving some countries struggling to keep up, while others try to form coalitions on key sticking points in the limited time available.

In the European Parliament however, time is seemingly not of the essence. After spending two months agreeing on which committee should lead on the file (legal affairs and not internal market in the end), the committees involved don’t seem to be following the same Dutch speed.

Given that timing seems to be important to the different institutions here, it seems only fitting that one of the key sticking points is time. That is, how long is the “temporary” in “temporary portability”?

The Commission chose to define “temporary” by referring to location only, with no reference to time.

Some Member States are happy with that, others less so. SAA certainly doesn’t feel comfortable with this.

As the character Papou in SAA Patron, Cédric Klapsich’s Russian Dolls said:

“Be careful, because the temporary, sometimes, can last a long time”

Papou : Fais attention, parce que le temporaire, des fois, ça dure longtemps.

A conversation on what we mean by “temporary” is essential. Are expats who have been away from their country so long that they can’t vote in referendums still only away on a temporary basis?

Maybe we can’t agree on a number of days but a definition of temporary that doesn’t refer to time seems pretty weak for a directly applicable Regulation.


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Authors’ organisations open the European copyright ball

Authors’ organisations of the text (EWC), visual arts (EVA) and music (ECSA) sectors held conferences to address new MEPs last week. They kicked off the copyright event season as the new Commission started work and whose President has announced ambitious legislative proposals within the first 6 months.

While the European Commission President wants to break down national silos in copyright (whatever that means), these events explained the reality of an author’s life through the testimonies of writers, photographers and music composers. The general message was that the authors’ position is not improving while there are now many different ways to enjoy their works. An ALCS study on writers’ earnings showed that in 2005, 40% of professional authors earned their income solely from writing. In 2013, that figure had dropped to just 11.5%. The typical income from writing has fallen 29% in real terms since 2005.

As far as their contracts are concerned, the effort and time needed before having a contract is huge for audiovisual authors. Existing contractual protection (where it exists) is ineffective and difficult to enforce (KEA/CRIDS study for the European Parliament). The limited effect of these protective rules is due to the weak bargaining position of authors. They face a take-it or leave-it choice or the commission will go to someone else. A photographer asked ‘what is contractual freedom between an individual and a corporation?’

The common ground between these sectors is the lack of effective contractual freedom. A professor emphasized the need for collectivism to counter the lack of individual bargaining power. A copyright expert from the European Commission sketched out 3 possible approaches for the EU on this issue of fair contracts and fair remuneration: intervene on contractual law, develop a remuneration right (on the model of the lending right), support collective bargaining. These 3 approaches are not necessarily exclusive.

It was extremely important to hear these authors and their representatives at this crucial point. The Commission services are going to prepare a legislative initiative on copyright according to the instructions from the highest political level. Unfortunately, the highest political level is very focused on cross-border access to content, a tiny issue in the copyright field but very high on their agenda for a digital single market. .

While Olli Rehn, vice-President of the European Parliament, summed it up well – appropriate remuneration for work is the only way to ensure that the whole chain will thrive – it seems that authors’ remuneration in the digital era will not be addressed unless authors’ organisations increase the pressure.

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